Mountain Law: The debate over the meaning of the Second Amendment

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The Second Amendment states, in its entirety: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The recent Newtown shootings reinvigorated a longstanding debate about the proper interpretation of this language, particularly whether or not it safeguards an individual right to own guns. This article describes some aspects of the debate and the state of the law.

Starting with the language itself, some people focus on the stated purpose of the Second Amendment, ensuring a "well regulated Militia," and interpret the language as safeguarding the right of states, not individuals, to protect themselves. Others focus on the words "the right of people to keep and bear arms shall not be infringed" to argue that the Second Amendment grants an individual right to bear arms. The language is thus fairly susceptible to different interpretations that are difficult to reconcile.

It would be ideal if the language of the Second Amendment were clearly understood in historical context, but it remains hotly debated what the framers intended the language to mean. There is historical evidence that can be pointed to on each side of the debate with no definitive answer.

Some point to the tradition of citizens owning guns throughout American history as evidence that the Second Amendment creates an individual right to own guns. But there is also a longstanding tradition of federal and state regulation of guns. It's not clear what tradition should control in a dispute.

How much weight should be given to gun violence such as the Newtown massacre when applying the Second Amendment? As I wrote in my June 30, 2010, column titled "Interpreting the Constitution," there are broadly two schools of thought when it comes to interpreting the Constitution, one that believes the Constitution has a single, fixed meaning and the other that believes the meaning of the Constitution changes over time in response to society's needs. For those who believe the Second Amendment has a single fixed meaning, instances of gun violence have no impact on the meaning and application of the Second Amendment. The contrary argument is that society has changed since the Second Amendment was adopted and the law should be interpreted and applied in light of current events.

For almost 70 years from 1939 to 2008, the law of the land was the Supreme Court's decision in United States v. Miller where it clearly rejected the idea that the Second Amendment creates individual gun rights. Then, in 2008, the Supreme Court abruptly reversed course in Dist. of Columbia v. Heller when it overturned a law requiring residents to keep lawfully owned guns unloaded and disassembled or bound by trigger locks when not in use. The Supreme Court recognized for the first time in Heller an individual right to own guns under the Second Amendment, but found that the right, like all constitutional rights, had certain limits. The Supreme Court thought the trigger lock law went too far in interfering with an individual's right to self-defense, but it explicitly approved other gun restrictions such as prohibiting gun possession by felons and the mentally ill, restricting firearms in schools and government buildings, restricting commercial sales of guns and controlling "dangerous and unusual weapons."

The current law, therefore, is that Heller recognized an individual right to own guns, and struck down the trigger lock law, but left open the door to some restrictions on gun ownership that are not yet fully defined. Any new gun regulation in response to Newtown would have to pass muster with Congress, but also likely with the courts.

Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado, emphasizing real estate, business, and litigation. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.